Can I force the assumed father to take a paternity test?

05/04/2009 - Paternity - State: AZ #16567

Full Question:

My daughter is 8 years old and her father and I established paternity in 2001 by voluntary means (we were never married and he never requested a paternity test). At the current time, we have joint custody and he is trying to get full custody of her. However, I have a 6 month old son who only recently came to my knowledge that his father could very likely be my daughters father as well. I was told by this man that he could never have children; however, we found out that was not true due to the birth of my son. My question is what is the law of Indiana regarding revoking paternity and how do I go about requesting a paternity test from the assumed father. He would never agree to it and would probably have to be court ordered. The assumed father and I also have a modification custody and support hearing in August 2009 and I'm wondering if I should bring this up before then?

Answer:

In most states, a paternity action takes the form of a civil lawsuit. Only certain persons or parties have legal standing to bring a paternity action, including the mother of the child; the mother of an expected child; a man alleging that he is the biological father of a child; a man alleging that he is the biological father of an expected child; the child; a personal representative of the child; the mother and father of a child (a voluntary action filed together); the mother and father of an expected child (a voluntary action filed together); a state social service agency, interceding in cases of child neglect or need; and a prosecutor's office, interceding in cases of child neglect or need. An action for paternity may be filed by the child. In many states, after a child reaches the "age of majority," he has another one to five years to seek the establishment of paternity.

A man is rebuttably presumed to be the father of a child born to a woman if he and the woman were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment or dissolution or after entry of a judgment of separation. However, this may be rebutted by clear and convincing evidence, such as genetic testing, in a paternity action by a man claiming to be the biological father.

A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will all be tested at a court-designated facility. A court determination of paternity is final, and a copy of the court's order will be needed to establish the child's rights, both present and future. If a person refuses to take a paternity test, the court may hold the person in contempt, or a default (automatic) judgment may be entered against the person.

If a person is not the father, then he cannot be required to support the child. If he was married to the mother when the child was conceived, he signed a birth certificate, or if he signed an "acknowledgment of paternity" form, then he is presumed to be the father. Otherwise, child services, the state, or the mother must establish that he is the father.

IN statutes allow a voluntary acknowledgement of paternity to be rescinded for 60 days. After that time, it will be a matter for the court to set it aside after a genetic test result establishing paternity in a paternity action. A petition for establishing paternity may be filed in court and the court may order the alleged father to have genetic testing. I am prohibited from giving legal advice on when a proceeding should be brought. However, once paternity is established, the court can order support to be paid by the biological father and another man wrongly presumed to be the father may have a previous support order set aside.

The following are IN statutes:

IC 16-37-2-2.1 (a) A paternity affidavit may be executed as provided in....

(a) A paternity affidavit may be executed as provided in this section through:
(1) a hospital; or
(2) a local health department.
(b) Immediately before or after the birth of a child who is born out of wedlock, a person who attends or plans to attend the birth, including personnel of all public or private birthing hospitals, shall:
(1) provide an opportunity for:
(A) the child's mother; and
(B) a man who reasonably appears to be the child's biological father; to execute an affidavit acknowledging paternity of the child; and
(2) verbally explain to the individuals listed in subdivision (1) the legal effects of an executed paternity affidavit as described in subsection (g).
(c) A paternity affidavit must be executed on a form provided by the state department. The paternity affidavit is valid only if the affidavit is executed as follows:
(1) If executed through a hospital, the paternity affidavit must be completed not more than seventy-two (72) hours after the child's birth.
(2) If executed through a local health department, the paternity affidavit must be completed before the child has reached the age of emancipation.
(d) A paternity affidavit is not valid if it is executed after the mother of the child has executed a consent to adoption of the child and a petition to adopt the child has been filed.
(e) A paternity affidavit executed under this section must contain or be attached to all of the following:
(1) The mother's sworn statement asserting that a person described in subsection (b)(1)(B) is the child's biological father.
(2) A statement by a person identified as the father under subdivision (1) attesting to a belief that he is the child's biological father.
(3) Written information furnished by the child support bureau of the department of child services:
(A) explaining the effect of an executed paternity affidavit as described in subsection (g); and
(B) describing the availability of child support enforcement services.
(4) The Social Security number of each parent.
(f) A woman who knowingly or intentionally falsely names a man as the child's biological father under this section commits a Class A misdemeanor.
(g) A paternity affidavit executed under this section:
(1) establishes paternity;
(2) gives rise to parental rights and responsibilities of the person described in subsection (e)(2), including:
(A) the right of the child's mother or the Title IV-D agency to obtain a child support order against the person, which may include an order requiring the provision of health insurance coverage; and
(B) reasonable parenting time rights unless another determination is made by a court in a proceeding under IC 31-14-14; and
(3) may be filed with a court by the department of child services. However, if a paternity affidavit is executed under this section, the child's mother has sole legal custody of the child unless another custody determination is made by a court in a proceeding under IC 31-14.
(h) Notwithstanding any other law, a man who is a party to a paternity affidavit executed under this section may, within sixty (60) days of the date that a paternity affidavit is executed under this section, file an action in a court with jurisdiction over paternity to request an order for a genetic test.
(i) A paternity affidavit that is properly executed under this section may not be rescinded more than sixty (60) days after the paternity affidavit is executed unless a court:
(1) has determined that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit; and
(2) at the request of a man described in subsection (h), has ordered a genetic test, and the test indicates that the man is excluded as the father of the child.
(j) Unless good cause is shown, a court shall not suspend the legal responsibilities under subsection (g)(2)(A) of a party to the executed paternity affidavit during a challenge to the affidavit.
(k) The court may not set aside the paternity affidavit unless a genetic test ordered under subsection (h) or (i) excludes the person who executed the paternity affidavit as the child's biological father.
(l) If a paternity affidavit is not executed under subsection (b), the hospital where the birth occurs or a person in attendance at the birth shall inform the child's mother of services available for establishing paternity.
(m) Except as provided in this section, if a man has executed a paternity affidavit in accordance with this section, the executed paternity affidavit conclusively establishes the man as the legal father of a child without any further proceedings by a court.

IC 31-14-5-1 Each petition in a paternity action must:

Each petition in a paternity action must:

(1) be verified; and
(2) be captioned "In the Matter of the Paternity of ________".

IC 31-14-5-3 (a) This section does not apply to an action filed by the....

(a) This section does not apply to an action filed by the department or its agents under section 4 of this chapter (or IC 31-6-6.1-6(c) before its repeal).
(b) The mother, a man alleging to be the child's father, or the department or its agents must file a paternity action not later than two (2) years after the child is born, unless:
(1) both the mother and the alleged father waive the limitation on actions and file jointly;
(2) support has been furnished by the alleged father or by a person acting on his behalf, either voluntarily or under an agreement with:
(A) the mother;
(B) a person acting on the mother's behalf; or
(C) a person acting on the child's behalf;
(3) the mother, the department, or the county office of family and children files a petition after the alleged father has acknowledged in writing that he is the child's biological father;
(4) the alleged father files a petition after the mother has acknowledged in writing that he is the child's biological father;
(5) the petitioner was incompetent at the time the child was born; or
(6) a responding party cannot be served with summons during the two (2) year period.
(c) If any of the conditions described in subsection (b) exist, the paternity petition must be filed not later than two (2) years after the condition described in subsection (b) ceases to exist.


Please see the information at the following links:

http://lawdigest.uslegal.com/paternity/general/6664/
http://definitions.uslegal.com/p/paternity/
http://definitions.uslegal.com/t/termination-of-parental-rights/
http://lawdigest.uslegal.com/family-laws/unmarried-parents/

Please see the forms at the following links:

http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-IN-B-paternity

05/04/2009 - Category: Paternity - State: AZ #16567

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